WALING CHOIZILME, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent.
No. 15-13845
Agency No. A075-853-600
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
March 30, 2018
[PUBLISH]
Petition for Review of a Decision of the Board of Immigration Appeals
Before JORDAN, HULL and GILMAN,* Circuit Judges.
Waling Choizilme, a native and citizen of Haiti, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of removal based on his five criminal convictions for drug offenses under
I. LEGAL BACKGROUND
The Immigration and Nationality Act of 1965 (“INA”) makes removable “[a]ny alien who is convicted of an aggravated felony.”
Recently, this Court has addressed the two portions of this definition: (1) “illicit trafficking in a controlled substance”; and (2) a “drug trafficking crime” as defined in
Subsequently, in Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176-79 (11th Cir. 2016), this Court held that a conviction for sale of a controlled substance under
With this background, we review the procedural history of Choizilme’s immigration proceedings and then address Choizilme’s arguments on appeal.
II. IMMIGRATION PROCEEDINGS 2012-2017
In December 1998, Choizilme was admitted to the United States as a legal permanent resident.2 In 2005, Choizilme was convicted in Florida state court of, inter alia, (1) possession of cocaine, (2) possession of a Schedule IV substance, (3) possession of a Schedule II substance, and (4) possession of hydrocodone, all in violation of
A. Initial Hearings in August and December 2012
In March 2012, the Department of Homeland Security (“DHS”) issued a Notice to Appear, charging Choizilme with removability under
At his second master-calendar hearing on December 4, 2012, Choizilme, through
B. June 4, 2013 Hearing
At the June 4, 2013 hearing, Choizilme, again through counsel, sought another continuance of his immigration proceedings “to figure out whether or not he [was] eligible for cancellation [of removal].” Choizilme explained that he had retained a criminal attorney who was “working on a motion to vacate” his 2006 sale-of-cocaine conviction because that drug conviction would prevent him from being eligible for cancellation of removal. Choizilme admitted he had not filed a motion to vacate in state court yet because he was unable to afford a criminal attorney sooner.
The government opposed Choizilme’s motion for a continuance. The IJ agreed that a continuance was not warranted at that point because it was “still kind of tenuous on [his] post-conviction relief.” Accordingly, the IJ suggested that Choizilme plead to the allegations in the Notice to Appear to “advance the case a little bit.” Choizilme, through counsel, admitted the allegations and conceded the charge of removability. The IJ sustained the charge and designated Haiti as Choizilme’s country of removal. The IJ further indicated that Choizilme was eligible for deferral of removal under the United Nations Convention Against Torture (“CAT”), and gave him 60 days to file an application for deferral.3
The IJ scheduled a merits hearing for April 25, 2014. This, in effect, gave Choizilme 10 more months to file a motion to vacate his Florida convictions in state court (i.e., a 10-month continuance). The IJ stated that, “by that time if he’s eligible for cancellation, you can file that application and we’ll convert that into a . . . cancellation hearing.”
C. Merits Hearing on April 25, 2014
Ten months later, at the April 25, 2014 merits hearing, Choizilme, through counsel, indicated that he still had not filed a petition in state court to vacate his 2006 sale of cocaine conviction and that “without the vacatur he ha[d] no relief available.” Choizilme, again through counsel, stated that “if the [IJ was] unable to grant [a] continuance,” the IJ should proceed by issuing a final order of removal.
To the extent that Choizilme was requesting another continuance to “wait[] to see if his conviction is vacated,” the government objected. The IJ agreed that another continuance was not appropriate. As of this April 25, 2014 hearing, Choizilme already had had two continuances to seek relief in state court, totaling 16 months (December 4, 2012 to April 25, 2014). The IJ stated, however, that in the event that Choizilme was successful in seeking post-conviction relief in state court, he could file a motion to reopen his immigration proceedings to determine his eligibility for relief.4
The IJ then issued an oral decision ordering Choizilme’s removal to Haiti. The IJ noted that Choizilme had admitted the allegations in the Notice to Appear at the
D. Appeal to the BIA
On May 27, 2014, Choizilme, through counsel, appealed the IJ’s order of removal to the BIA. In his notice of appeal, Choizilme argued that the IJ erred in ordering his removal without advising him of his potential eligibility for cancellation of removal. Choizilme contended that he was eligible for cancellation of removal because, inter alia, his 2006 Florida conviction for sale of cocaine was not an aggravated felony under the INA because it did not qualify as either a “drug trafficking crime” or “illicit trafficking.” In support of his argument, Choizilme cited this Court’s decision in Donawa, which held that a conviction under
In his October 24, 2014 brief before the BIA, Choizilme argued, as an initial matter, that the BIA should remand his case to the IJ because the IJ’s oral decision failed to provide a meaningful explanation as to why Choizilme was ineligible for cancellation of removal.
Choizilme then asserted that he in fact was eligible for cancellation of removal because he was not convicted of an aggravated felony. First, Choizilme explained that, in Donawa, this Court had held that convictions under
Choizilme acknowledged that the BIA’s decision in Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014), held that a violation of
E. BIA’s July 28, 2015 Decision
On July 28, 2015, the BIA denied Choizilme’s request for a remand and dismissed his appeal. First, the BIA rejected Choizilme’s contention that the IJ failed to advise him of his eligibility for cancellation of removal or to provide an explanation for determining that he was ineligible for relief. The BIA noted that Choizilme’s own counsel acknowledged his apparent ineligibility for cancellation of removal, and this Court’s decision in Donawa did not impose a duty on the IJ to advise Choizilme that he could seek cancellation on the basis of that decision. The BIA further noted that nothing prevented Choizilme’s counsel from arguing at the April 2014 merits hearing that Choizilme was eligible for cancellation of removal in light of the 2013 Donawa decision.
As to Choizilme’s arguments about Matter of L-G-H-, the BIA stated that it was bound to apply that precedential decision and, in any event, that Choizilme’s arguments on appeal were essentially the same as those considered and rejected in Matter of L-G-H- itself. Finally, the BIA agreed
III. STANDARD OF REVIEW
This Court reviews de novo questions of law, including whether a conviction qualifies as an “aggravated felony” under the INA, subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984); Arevalo v. U.S. Att’y Gen., 872 F.3d 1184, 1187 (11th Cir. 2017); Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176 (11th Cir. 2016). Where the BIA has interpreted an ambiguous provision of the INA in a published, precedential decision, we defer to the BIA’s interpretation under Chevron, as long as it reflects a permissible construction of the statute. See Negusie v. Holder, 555 U.S. 511, 516-17, 129 S. Ct. 1159, 1163-64 (2009).
Chevron prescribes a two-step analysis. First, we ask whether the statute at issue is ambiguous, which requires the Court to consider “whether Congress has directly spoken to the precise question at issue.” Vidiksis v. EPA, 612 F.3d 1150, 1154 (11th Cir. 2010) (quoting Chevron, 467 U.S. at 842-45, 104 S. Ct. at 2781-83) (internal quotation marks omitted). If the statute is unambiguous, the Court applies it according to its terms and no deference is due to the BIA. Carcieri v. Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 1063-64 (2009); see also Esquivel-Quintana v. Sessions, __ U.S. __, 137 S. Ct. 1562, 1572 (2017) (declining to apply Chevron deference to the BIA’s interpretation of one of the aggravated-felony definitions in the INA because “the statute, read in context, unambiguously foreclose[d] the [BIA’s] interpretation”).
Second, if the statute is silent or ambiguous with respect to the specific issue presented, we must then determine whether the BIA’s interpretation is reasonable or based on a permissible construction of the statute. See Chevron, 467 U.S. at 843, 104 S. Ct. at 2781-82. A reasonable interpretation is one that is “rational and consistent with the statute.” See Sullivan v. Everhart, 494 U.S. 83, 89, 110 S. Ct. 960, 964 (1990).
“[T]o determine whether an alien’s conviction qualifies as an aggravated felony [under the INA], we employ a categorical approach by looking to the statute . . . of conviction rather than the specific facts underlying the crime.” Esquivel-Quintana, 137 S. Ct. at 1567-68 (internal quotation marks omitted). “Under that approach, we ask whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Id. (internal quotation marks omitted). To make that determination, we “line[] up [the state] crime’s elements alongside those of the generic offense and see[] if they match.” Mathis v. United States, 579 U.S. __, __, 136 S. Ct. 2243, 2248 (2016). In this regard, the court must “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime,” and a conviction under the state statute will constitute a conviction for the generic offense only “if the statute’s elements are the same as, or narrower than, those of the generic offense.” Descamps v. United States, 570 U.S. 254, 257, 133 S. Ct. 2276, 2281 (2013).
When the state statute of conviction sets out multiple elements in the alternative, and thereby defines multiple crimes, we employ a modification of the
IV. MATTER OF L-G-H-
Because the BIA in Choizilme’s case relied on its precedent in Matter of L-G-H-, we outline what that decision held and why.
Like Choizilme, the respondent in Matter of L-G-H- was convicted in 2006 of, among other things, selling cocaine in violation of
As a preliminary matter, the BIA explained that, prior to the enactment of
The BIA then explained that, in Donawa, this Court concluded that
Looking to the language of
The BIA further pointed out that when Congress revised the INA in 1990, “it intended to expand, rather than limit, the removal of aliens convicted of drug offenses.” Id. Moreover, there was no reason to believe that Congress intended to impose a specific mens rea requirement, and thereby exclude state drug-trafficking crimes from the aggravated-felony definition solely because they did not require knowledge of the illicit nature of the substance involved. Id. The BIA also noted that “[t]he Supreme Court has long recognized the constitutional validity of statutes related to public-welfare offenses, such as the illegal dealing of narcotics, even though they lack a mens rea requirement.” Id. Although not aware of any legislative history addressing the mens rea issue, the BIA determined that Congress likely was aware of that Supreme Court precedent when it expanded the aggravated-felony definition to include illicit trafficking. Id. at 370.
Finally, the BIA noted its prior holding in Matter of Davis that “‘illicit’ is defined as ‘not permitted or allowed; prohibited; unlawful; as an illicit trade.’” Id. (quoting Matter of Davis, 20 I&N Dec. at 541). In thus defining “illicit,” Matter of Davis “gave effect to this plain meaning to construe the term ‘illicit’ as simply referencing the illegality of the trafficking activity.” Id. The BIA explained that this plain meaning did not necessarily suggest an illicit-nature mens rea requirement “because a person can engage in the unlawful or illicit trading or dealing in a controlled substance without knowing that the controlled substance that is the subject of the transaction is illegal.” Id. Consequently, the BIA “expressly [held] that there is no such mens rea required by the term ‘illicit,’ at least not within the context of the statutory scheme established by Florida, where knowledge of the substance is still required and an affirmative defense is available
Having concluded that “illicit trafficking” does not include a mens rea requirement, the BIA then considered whether
V. OUR PRECEDENT IN SPAHO
Subsequent to Donawa and Matter of L-G-H-, this Court in Spaho squarely addressed whether a conviction for the sale of a controlled substance in violation of
The Spaho Court concluded that “[i]n this case, the Board was correct in upholding the IJ’s determination that § 893.13(1)(a)(1) is divisible.” Id. at 1177. The Spaho Court explained that, in determining divisibility, we focus primarily on the statutory text. Id. “Section 893.13(1)(a) provides in relevant part that ‘a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.’” Id. (quoting
Thus, consistent with the BIA’s analysis in that case, the Spaho Court determined that
In reaching this conclusion, the Spaho Court rejected the petitioner’s argument that the BIA’s divisibility determination was in conflict with Donawa. Id. at 1178. The Spaho Court acknowledged that Donawa “applied the categorical approach for indivisible statutes in finding that a conviction under § 893.13(1)(a)(2) did not qualify as an aggravated felony under the drug trafficking component of 8 U.S.C. § 1101(a)(43)(B).” Id. But the Spaho Court distinguished Donawa because it “dealt with a different and narrower question than that presented here”—namely, whether the affirmative defense of lack of knowledge of the illicit nature of the substance established by
The Spaho Court explained that although Donawa concluded that
Applying that approach, the Spaho Court explained that some of the alternative elements set forth in
substance” under
Before leaving Spaho, we point out that, in citing Matter of L-G-H-, the Spaho Court noted that the BIA concluded in that case that “illicit trafficking” does not require knowledge of the illicit nature of the substance as a mens rea element, at least in the context of the Florida statute. Spaho, 837 F.3d at 1178 n.2. The Spaho Court further noted that “Spaho does not challenge the correctness of the BIA‘s definition of illicit trafficking, and we express no opinion on it.” Id.
VI. GORDON
Subsequently, this Court has followed Spaho in applying the modified categorical approach to determine whether an offense under
Following the same divisibility analysis outlined in Spaho, the Gordon Court explained that the text of
In Gordon the petitioner‘s convictions were for sale or delivery of a controlled substance in violation of
The Gordon Court then explained that the documents relied on by the BIA to determine which of
VII. ANALYSIS OF CHOIZILME‘S CLAIM
At issue in this appeal is Choizilme‘s 2006 conviction under
On appeal, Choizilme argues that his sale-of-cocaine conviction cannot qualify as “illicit trafficking” because the Florida statute does not include knowledge of the illicit nature of the controlled substance as an element of the offense. Choizilme contends that, unlike the Florida statute and contrary to the BIA‘s conclusion in Matter of L-G-H-, the generic federal definition of illicit trafficking requires knowledge of the illicit nature of the substance as a mens rea element. As such, he maintains that convictions under
As described above, Spaho held, using the definition of illicit trafficking described in Matter of L-G-H-, that a conviction such as Choizilme‘s for sale of cocaine under
Like the BIA, “[o]ur analysis begins with the language of the statute.” See Esquivel-Quintana, 137 S. Ct. at 1569 (internal quotations omitted). Section
Furthermore, as the BIA pointed out in Matter of L-G-H-, the ordinary meaning of the word “illicit” simply denotes the illegality of a particular activity—in this case, trafficking in a controlled substance. Id. at 370; see also, e.g., Black‘s Law Dictionary (10th ed. 2014) (defining “illicit” as “[i]llegal or improper“); Oxford English Dictionary (2d ed. 1989) (defining “illicit” as “[n]ot authorized or allowed,” “improper,” and “unlawful“). Thus, the use of the term “illicit” does not necessarily imply a mens rea requirement, as a person may engage in the unlawful trafficking of a controlled substance without knowing the substance that is the subject of the transaction is illegal. Matter of L-G-H-, 26 I&N Dec. at 370.
Finally, as the BIA noted in Matter of L-G-H-, Congress has generally evinced an “inten[t] to expand, rather than limit, the removal of aliens convicted of drug offenses.” Id. at 369 (citing Matter of Esqueda, 20 I&N Dec. 850, 853-54 & n.3 (BIA 1994) (“[I]t is well recognized that Congress has historically exhibited a strong national policy to deport aliens convicted of drug offenses from our country.“)). It stands to reason, then, that Congress would not wish to exclude from the definition of “illicit trafficking” state offenses that otherwise qualify as “unlawful trading or dealing of [a] controlled substance” merely because they lack an illicit nature mens rea requirement. See id. This is particularly true here, where Florida law explicitly provides a safeguard against convictions for truly innocent conduct. See
Any concern that entirely innocent conduct will be punished with a criminal
sanction under chapter 893 is obviated by the statutory provision that allows a defendant to raise the affirmative defense of an absence of knowledge of the illicit nature of the controlled substance. In the unusual circumstance where an individual has actual or constructive possession of a controlled substance but has no knowledge that the substance is illicit, the defendant may present such a defense to the jury.
In sum, we agree with the BIA‘s analysis in Matter of L-G-H- and conclude that “illicit trafficking” under
PETITION FOR REVIEW DENIED.
JORDAN, Circuit Judge, concurring in the judgment.
I concur in the judgment.
In Spaho v. U.S. Atty. General, 837 F.3d 1172, 1178 (11th Cir. 2012)—exercising plenary review independent of any BIA interpretation—we squarely held that a conviction under
If we adhere to the portion of Spaho that agreed with the BIA‘s use of the modified categorical approach, see 837 F.3d at 1177, but still get to decide anew whether a conviction under
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The Supreme Court has told us that, in interpreting an undefined term in the Immigration and Nationality Act, we should look at the language of the relevant statute, including the everyday understanding of the term in question, followed by the structure of the statute, the definition of the term in any related federal statutes, and the term‘s generic meaning as gleaned from state criminal codes. See Esquivel-Quintana v. Sessions, 137 S. Ct 1562, 1569-71 (2017). As I explain below, this multi-step analysis does not provide any clear answers here.
These individual definitions of “illicit” and “trafficking,” however, do not really tell us what the two words mean when they are combined. If “trafficking” already connotes some level of illegality or unlawfulness, as Black‘s Law Dictionary suggests, it is difficult to see what “illicit” adds to the calculus. And even if “illicit” means something else as an adjective for “trafficking,” it is not apparent what that something else is. Is it the level of mens rea? Or the quantity being trafficked? Or something else altogether? The text does not yield any ready answers.
Second, the structure of the INA does not help. The majority reasons that the use of “including a drug trafficking crime,” following the term “illicit trafficking in a controlled substance,” indicates that “drug trafficking” is a subset of “illicit trafficking.” The word “including,” according to the majority, generally connotes an illustrative example of the preceding general category. See Maj. Op. at 26. The flaw with this analysis is that, unlike most broad general categories that are followed by narrower illustrative examples, here the example (“a drug trafficking crime“) is in some ways broader than the general category (“illicit trafficking in a controlled substance“), and in those instances the example swallows the general category. The BIA recognized this very fact in Matter of L-G-H, 26 I. & N. Dec. at 369 n.6 (“the “subset” is both broader and narrower than “illicit trafficking““). That is because of the way “drug trafficking crime” is defined in Title 21 of the U.S. Code. For example, felony convictions for recidivist simple possession under
The majority‘s reading also potentially renders “drug trafficking crime” superfluous. If mens rea is the element that distinguishes “illicit trafficking in a controlled substance” from a “drug trafficking crime,” see Donawa v. U.S. Atty. General, 735 F.3d 1275, 1281 (11th Cir. 2013) (holding that the generic definition of “drug trafficking crime” requires proof that the defendant had knowledge of the nature of the substance in question),
Third, the use of the same term in related federal statutes is equally unhelpful. To the extent that other federal statutes reference “illicit trafficking,” the term is left undefined. See, e.g.,
Finally, the term “illicit trafficking” is used in some state statutes. But, again, it is left undefined. See, e.g.,
At the end of the day, the Esquivel-Quintana factors do not provide any clear guidance, and we are left with an ambiguous term. In my view, the BIA‘s interpretation of the ambiguous term “illicit trafficking in a controlled substance” as not requiring mens rea, see Matter of L-G-H, 26 I. & N. at 369-70, is entitled to Chevron deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (“the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication“) (internal quotation and citation omitted). Although I can‘t say with confidence that the BIA‘s interpretation is right, I also can‘t say with any certainty that it is wrong. Under the circumstances, Chevron deference is warranted.
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When a term in the INA is ambiguous, the BIA‘s interpretation by way of an agency opinion is afforded Chevron deference. I would deny Mr. Choizilme‘s petition on that basis.